June 18, 2008

"John McCain is for strict conservative — excuse me — strict constructionist Court."

Senator Sam Brownback bumbles, revealingly. He's a co-chair of McCain's judicial advisory committee. (For the quote, click to listen to the segment and go to 3:18.)

33 comments:

Meade said...

Right. Because those two words are nowhere near one another in the English language.

UWS guy said...

What term is it that Scalia doesn't like, is it constructionist? (He mentions it in his speaches). What term is it that Scalia uses? I don't think it's constructionist.

UWS guy said...

browses through youtube

...Originalism. Scalia considers himself an originalist, not a constructionist, let alone a 'strict' one; I'm pretty sure he doesn't like that term.

Ann Althouse said...

All judges must construe the Constitution, which makes them constructionists (finders of meaning). The question is whether to be a "strict constructionist." But that is a term politicians use. And Brownback, I think, revealed that he uses the word "constructionist" as code for "conservative."

Scalia will consistently deny that he's a strict constructionist, since he's not for narrowing or broadening the Constitution, but just saying exactly what it means.

Quayle said...

If the Supreme Court is the body entrusted with the role and responsibility to keep the Constitution current to our modern notions of what the Constitution means and protects, why did the framers bother to write up a detailed process in Article V?

Why didn’t the framers just write Article V to say, "The Supreme Court, whenever a slim majority of the sitting justices shall deem it necessary, shall unilaterally amend and extend this Constitution, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when a mere five justices so decide and inform the President, Congress, and the people that they have so decided."

Isn't that what the liberals want? Let's just pretend that Article V was a huge mistake. Let’s all agree to let the SCOTUS be the and only keepers of the Constitution. When in the pristine sanctity of their minds, the justices decide that the constitution now extends to something that it didn’t extend to before, and about which the words are silent, they’ll inform us by opinion, and we’ll dutifully obey.

Simon said...

UWS Guy - correct, he's not - denies being and his record supports him - a strict constructionist. He would describe himself as a textualist and an originalist, and with a few exceptions, a glance through his opinion with an eye on revealed preference supports that. He is generally a conservative, but many of his rulings (United States v. Santos, decided earlier this term, is a good example) are neither strict construction nor particularly conservative.

None of this may matter, of course, because the judges that McCain cited as his models did not include Scalia. He cited Rehnquist, Roberts and Alito. McCain has indicated a clear preference for what we might call the more "law and order minimalist" conservative judge, rather than the more bold, legal process-oriented conservative judge. This matters a great deal in cases such as the Apprendi line, for example, where Scalia and Thomas joined the liberals over dissents from Rehnquist and Alito.

Simon said...

(UWS Guy, for another example, consider the first amendment. It says "Congress shall make no law..." etc. A strict constructionist would take Justice Black's view: a strict construction of "no law" means no law. If it regulates speech, it violates the first amendment, period. That would be the strict construction, and it's certainly not Scalia's view. Moreover, it says Congress shall make no law." A strict constructionist should conclude that only the legislative branch can violate the First Amendment, which may be a strict construction, but it's also an utterly absurd one that nobody, least of all Scalia, has ever advocated (at least seriously).

knoxwhirled said...

I love gaffes like this. Remember when Kennedy stumbled over Obama's name... he must have said "Osama-Obama" about 50 times

Scrutineer said...
This comment has been removed by the author.
UWS guy said...

Thanks for the layman explanation Ms. Althouse and Simon, I was actually gonna ask what the definitions were and you both explained them in a way which was very helplful.

Scrutineer said...

Scalia describes himself as a "textualist," and criticizes "strict constructionism":

“Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be—though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means. The difference between textualism and strict constructionism can be seen in a case my Court decided four terms ago [Smith v. United States, 508 U.S. 223 (1992)]. The statute at issue provided for an increased jail term if, ‘during and in relation to . . . [a] drug trafficking crime,’ the defendant ‘uses . . . a firearm.’ The defendant in this case had sought to purchase a quantity of cocaine; and what he had offered to give in exchange for the cocaine was an unloaded firearm, which he showed to the drug-seller. The Court held, I regret to say, that the defendant was subject to the increased penalty, because he had ‘used a firearm during and in relation to a drug trafficking crime.’ The vote was not even close (6-3). I dissented. Now I cannot say whether my colleagues in the majority voted the way they did because they are strict-construction textualists, or because they are not textualists at all. But a proper textualist, which is to say my kind of textualist, would surely have voted to acquit. The phrase ‘uses a gun’ fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. As I put the point in my dissent, when you ask someone, ‘Do you use a cane?’ you are not inquiring whether he has hung his grandfather's antique cane as a decoration in the hallway.”

UWS guy said...

That's also a very nice new photo of you in the side bar.

UWS guy said...

I'm talking to Ann Althouse now, not Simon.

Spread Eagle said...

I'm not seeing the supposed gaffe. "Strict construction" of the constitution as a term and as a concept has been around a long time, essentially meaning finding the original intent, and at least since the days of FDR it has been a conservative cause. So Brownback interchanged the words. Big deal. It's like calling water wet.

TMink said...

Spread, I think it is funny in that McCain is falling all over himself to not be identified as a conservative. He is indeed not a conservative, but he is hinting that he will put conservative judges on the bench. Hints only though.

Trey

UWS guy said...
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Revenant said...

Has anyone ever doubted that when Republicans politicians say "strict constructionist", they mean "conservative"? They obviously aren't talking about justices who will overturn federal flag-burning and anti-drug laws, after all. If "strict constructionist" is "code" for "conservative", it isn't much of a code. The decoder rings you get in a box of cereal handle tougher codes than that one.

Ann Althouse said...

"Has anyone ever doubted that when Republicans politicians say "strict constructionist", they mean "conservative"? "

It's more subtle than that, because it sends the signal without making any real commitment. If I had to bet, I would think McCain would pick a more moderate justice.

rcocean said...

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

Verso said...

Why didn’t the framers just write Article V to say, "The Supreme Court, whenever a slim majority of the sitting justices shall deem it necessary, shall unilaterally amend and extend this Constitution, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when a mere five justices so decide and inform the President, Congress, and the people that they have so decided."

But doesn't the Constitution, in fact, allow the Court to (in effect) "unilaterally amend and extend this Constitution, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when a mere five justices so decide and inform the President, Congress, and the people that they have so decided"?

If the Constitution didn't permit that, how could it have happened in the first place? Do you think the Constitution needs to be amended to restrict the power of the Court? I'd like to see the language for your proposed Constitutional amendment, the one that will make the Constitution more Constitutional.

Verso said...

Knoxwhirld said, I love gaffes like this. Remember when Kennedy stumbled over Obama's name... he must have said "Osama-Obama" about 50 times

Knox,
Is it a gaffe when you say "50 times" instead of "2"? Or is it a lie?

"KENNEDY: Why don't we just ask Osama bin -- Osama Obama -- Obama what -- since he won by such a big amount. Seriously, Senator Obama is really unique and special."

Simon said...

Ann Althouse said...
"If I had to bet, I would think McCain would pick a more moderate justice."

Of the pool of potential candidates - that is, not including Justices O'Connor or Kennedy - who do you think might fit the bill?

Simon said...

Verso said...
"[D]oesn't the Constitution, in fact, allow the Court to (in effect) 'unilaterally amend and extend this Constitution ...'? If the Constitution didn't permit that, how could it have happened in the first place?"

I think that's true, in the most literal sense, but it proves too much. It shows only that the Constitution isn't - frankly, I doubt any Constitution could be - totally secure against abuse by wilfull men. On your terms, one could say that the Constitution "permit[s]" everything that has ever been done - Lincoln's suspension of habeas, the japanese internments, the worst of the Bush administration's excesses, and so forth. After all, they happened, and if the Constitution didn't permit those results, how could they have happened in the first place? That proves-too-much reasoning suggests to me that imprecision in the meaning of "permit" is leading us astray.

Spread Eagle said...

Spread, I think it is funny in that McCain is falling all over himself to not be identified as a conservative. He is indeed not a conservative, but he is hinting that he will put conservative judges on the bench. Hints only though.

Oh, so the joke is that Brownback screwed up and accidently called McCain a conservative. Is that it? If that is all there is, yeah it is kind of funny.

Either way, it's a safe bet the people McCain would nominate are likely to be to the right of and more likely to self-identify as strict constructionists than anybody Obama would nominate.

veni vidi vici said...

The joke is that it reveals the talking points beneath the supposed "conversation" Brownback, whose name conjures the sound of a skidding automobile on pavement, is having with whomever he's being interviewed by.

Personally, I'd like to see a government with fewer "strict opportunist" politicians; we can sort out the judges once we get that straightened out.

Chip Ahoy said...

Thread jack.

Lovely new portrait.

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blake said...

Does Brownback have some insight into McCain's leanings?

Verso said...

"Kill the mothers and the babies."

This is conservatism today.

Audio of Michael Reagan calling for murder of women and their infants, because they are Muslim.

Quayle said...
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knoxwhirled said...

oh verso, get a sense of humor. I wasn't trying to score any points, this bumbling fool politician just reminded me of that one. They're all practically interchangeable.

Quayle said...

Verso said...
"[D]oesn't the Constitution, in fact, allow the Court to (in effect) 'unilaterally amend and extend this Constitution ...'? If the Constitution didn't permit that, how could it have happened in the first place?"

I can't find it anywhere in the Consitution that says the SCOTUS has the power or authority to do what you are asking above. Article III has no such wording.

Ironically, it was the Supreme Court itself that said on their own authority that they were the final arbiters of the Constitution. (See Marbury v. Madison) The Constitution says no such thing.

rcocean said...

Funny how both the right and the left are pushing the same lie, that McCain is some sort of conservative Republican who will change the SCOTUS by appointing more Scalia's.

McCain has never cared about social issues or the SCOTUS. McCain has always been friends with liberal democrats. For example, Lieberman is a close friend, campaigned for him and even helped interview his VP picks.

The Senate will probably be controlled Democrats and I'm sure McCain will have Lieberman sign off on any nominee. In fact, he'll probably have Holy Joe participate in selecting the nominee if he doesn't make him Attorney General.

Simon said...

Quayle said...
"I can't find it anywhere in the Consitution that says the SCOTUS has the power or authority to do what [Verso is] asking above. Article III has no such wording."

Article III has not a word about sovereign immunity, either - yet the Constitution still requires the courts to strike down exercises of Article I Congressional authority that purport to waive state sovereign immunity. E.g. Seminole Tribe v. Florida, 517 U.S. 44 (1996). Nor does the Constitution contain the words "federalism" or "separation of powers," but that does not mean that federalism, separation of powers, and, yes, judicial review are not part of the Constitution. See, e.g., Printz v. United States, 521 U.S. 898 (1997); Younger v. Harris, 401 U.S. 37, 44 (1971).

The claims that "it was the Supreme Court itself that said on their own authority that they were the final arbiters of the Constitution," or that "[t]he Constitution says no such thing," are false - or at least, grossly overstated. The Constitution may "say[]" things "either expressly or by necessary implication." U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 848 (1995) (Thomas, J., dissenting). Although the text of the Constitution controls, that does not free us to impose our preferred (and perhaps ahistoric) meaning on that text. The text should be read in view of the original meaning: what would a reasonable man have understood the text to be asking him to consent to? (That inquiry may sometimes delineate a range of possible answers to a given question, rather than pointing to the answer - but in many cases, it does answer the question, and where it does not, longstanding tradition will usually provide sufficient cabining, see Rutan v. Republican Party of Illinois, 497 U.S. 62, 94 n.1 (1990) (Scalia, J., dissenting)).

Phrases such as "the legislative power" or "the judicial power," for example, are not empty bottles; they draw their meaning from what was understood by the society that ratified the Constitution. Article I does not explicitly say that Congress may hold hearings, but in vesting the Congress with the legislative power, it puts beyond all question that the Congress is empowered to hold hearings; then, as now, the power to pass legislation was understood to include the power to investigate and frame legislation using needful and appropriate means.

Likewise, although Article III says nothing about judicial review, it vests "the judicial power" of the United States in the federal judiciary. And when combined with the supremacy clause and the immense significance of the Constitution being written, it is beyond any serious doubt that the judiciary would exercise the power of striking down unconstitutional laws. "In endowing th[e federal] Court[s] with judicial Power the Constitution presupposed an historic content for that phrase ... Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union." Coleman v. Miller, 307 U.S. 433, 461 (1939) (opinion of Frankfurter, J.). Or as Alexander Hamilton wrote in Federalist 78, "the power of the people is superior to both [the courts and the legislature]; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental." Furthermore, that the power of judicial review was understood by the founding generation to be implicit in the judicial power granted by a written constitution is made even more clear by the fact that the anti-federalists, the opponents of the Constitution, claimed that the vesting of such power in the courts was a reason to reject the Constitution. See, e.g., Anti-Federalist No. 78 ("Brutus").

Hostility to judicial review motivated by hostility to judicial mistakes is a poor counterargument to the text and amassed historical evidence of the original meaning of Article III, to Marshall's reasoning in Marbury, and to two centuries of tradition.